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Tuesday, December 27, 2016

Employee suspended for one year without pay after failing to comply with school directives


Employee suspended for one year without pay after failing to comply with school directives
2016 NY Slip Op 08440, Appellate Division, First Department

The Appellate Division unanimously confirmed the decision of the appointing authority that found a faculty member [Petitioner] guilty of certain charges of misconduct and imposed the penalty of a one-year suspension without pay following a disciplinary hearing that was conducted in absentia.

Noting that Petitioner “was afforded the opportunity to appear at the hearing, which he chose not to attend …,” the court rejected Petitioner’s argument that he was denied due process. The Appellate Division said that substantial evidence supported the appointing officer’s finding that Petitioner engaged in misconduct when he disregarded a school directive that he cease contact with certain faculty members and that he failed to comply with a school directive that he meet with a representative of the Office of Student Affairs.

Further, said the court, the “record belies Petitioner's contention that he was denied due process” in that the charges preferred against him were specified in a two-page letter containing sufficient factual and legal detail to apprise him of the misconduct of which he was accused and the substantive rules he was accused of violating. Indeed, said the Appellate Division, “[t]he initial disciplinary determination, coupled with the hearing exhibits, with which he was supplied, provided Petitioner with factual findings sufficiently detailed to apprise him of the misconduct he was found to have engaged in and to give him a meaningful opportunity to lodge an appeal (of which he availed himself twice).”

The Appellate Division ruled that there was no merit to Petitioner’s contention that he was denied administrative due process as he [1] was apprise him of the misconduct he was alleged to have engaged in; [2] was afforded the opportunity to appear at the hearing, which he chose not to attend and which was then conducted notwithstanding his absence from the proceeding; [3] was provided with detailed written determinations; [4] afforded an administrative appeal process; and [5] obtained judicial review via CPLR Article 78.

Finally, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and; Mamaroneck, Westchester County, 34 NY2d 222, the so-called Pell Doctrine, the court said that the penalty imposed, suspension without pay for one year, did not shock the judicial conscience.

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